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COVID -19: The changes brought about by the Coronavirus pandemic have caused a period of unprecedented disruption, severely affecting most people’s work and family life. In this global crisis, the likelihood of mental health problems, including depression, anxiety and stress, have never been greater.
As a result of COVID-19, on 23 March 2020 the Prime Minister announced that people should work from home if possible. The working from home guidance ended on 1 August 2020 giving employers discretion to decide how their staff could operate safely. On 22 September 2020 the guidance returned to working from home if that could be done effectively. As a substantial proportion of the workforce are likely to be remote working into 2021, employers have a critical responsibility to mitigate stress levels – this applies to all staff but especially those working from home.
Possible mental health initiatives which employers should pursue proactively are suggested below. Historically, large occupational stress claims are relatively rare, but the pandemic means that employers must prioritise taking steps to minimise this risk.
Mental health issues and stress in UK workplaces, and days lost as a result, are key issues for employers and their advisers. Mental ill health is increasing, causing both short- and long-term absence.&
There is no one statute specifically and exclusively covering the issue of mental health and stress at work. The relevant legal duties arise from discrimination provisions, the law of negligence, and express or implied terms in contracts of employment. Much of the law governing mental health and stress has evolved from case law rather than legislation.
At an EU level, the partners (European employers, trade union and other bodies) agreed to a voluntary Framework agreement on work-related stress.
Mental health issues and stress mean different things to different people. Employees may have pre-existing mental health conditions or may develop issues caused by factors that are unrelated to work.
In these Q&As, we focus on work-related stress including anxiety and depression.
Additional information is available in our CIPD guide Coronavirus (COVID-19): Mental health support for employees.
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Work-related stress, depression or anxiety
The HSE defines work-related stress, depression or anxiety as the ‘harmful reaction people have to excessive pressures or other types of demand placed on them'. Stress can be caused by excessive workload, pressures to meet deadlines, poor communication, office politics, job insecurity, lack of training, demands for increased production, or bullying.
Mental health problems may be short or long term.
Forty million people in the EU report that they have suffered from stress, and stress is the single biggest cause of sickness in the UK.
The ONS Labour Force Survey revealed in 2018/2019 that stress, depression or anxiety accounted for 44% of all work-related ill health cases, and 54% of all working days lost in British workplaces due to ill health. The total number of working days lost due to work-related stress, depression or anxiety in 2018/19 was 12.8 million days. This equated to an average of 21.2 days lost per case.
Mental health issues and stress are most common in public service industries. Those workers with the highest rates of work-related stress were health care professionals, teachers and others in education, and those working in caring services (in particular, social care and public administration).
The rates of work-related stress, depression and anxiety have been increasing significantly in recent years. The annual CIPD Health and well-being at work report for April 2020 found that three-fifths (60%) of organisations reported an increase in common mental health conditions, such as anxiety and depression, over the past year, with nearly two-fifths (37%) have seen an increase in stress-related absence.
The survey also showed that most organisations are taking some action to promote good mental health and/or support employees with mental health problems.
Workload pressures are the most common cause of stress, depression or anxiety, particularly in private and public services, including tight deadlines, too much responsibility and a lack of managerial support.
This year’s report showed an increase in the number of workplaces raising awareness of mental health, and more people professionals say their organisation is training line managers to manage stress (60% compared with 50% in 2019). Even more positively, an increasing number of employers are taking some action to manage employee mental health, such as phased return to work or other reasonable adjustments.
Work may cause mental health issues, or may aggravate a pre-existing condition. Employers have a legal responsibility to help employees in both these situations.
Most mental health issues and stress claims arise under the law of negligence or contract. There are also some types of duties governed by statute that employees may use as a basis for a stress claim.
Employers must take such steps as are reasonably necessary to protect the safety of their employees. If they breach that duty, they may find themselves facing a negligence claim for damages. The duty extends to both physical and mental health.
An employer owes a duty of care to its employees to provide proper staffing, adequate materials, safe premises, and a safe system of work. This arises under what is known as the common law of negligence. For example, an employer must not require an employee to work excessively long hours so that it is predictable that the work might damage their health.
The landmark case of Walker v Northumberland County Council (1994) set an important precedent regarding stress claims. The social worker with a heavy workload of child abuse cases had two nervous breakdowns. The High Court held that the employer was liable for psychiatric damage caused to him through stress as the employer had failed to provide assistance or reduce his workload and therefore was in breach of the employer’s duty of care.
The case made it clear that an employer's common law duty in tort law to provide a safe system of working includes a duty to protect them from psychiatric harm. Failure to protect employees could lead to significant compensation where the harm is reasonably foreseeable.
Following the Walker case, there have been a number of other important decisions, such as in Sutherland v Hatton (2002) where the Court of Appeal gave guidance in four joined cases where employers were liable for their employers’ psychiatric illness caused by stress. See the compensation heading below for the approach to take to employer’s liability and other on-going developments in this area.
The duties to take care of employees referred to above arise in the branch of law known as the tort of negligence. The duties overlap with other responsibilities imposed on employers by implied terms under the contract of employment. The employer may not have expressly agreed to these terms in a written contract, but employers should be aware that they are bound by the terms anyway.
The implied terms in a contract of employment that are relevant to mental health issues and stress claims include:
- The implied duty regarding health and safety
In all contracts of employment there is an implied term that the employer will provide the employee with a safe system of work. A failure to take reasonable steps to protect the employee from stress may result in the employee claiming breach of that term.
- The implied duty of mutual trust and confidence
This implied duty means that the employment relationship is based on trust and confidence, and an employer will not, without reasonable and proper cause, behave in a manner that is calculated or is likely to destroy or seriously damage that trust and confidence.
There are a number of pieces of legislation that have an impact on this area.
Health and Safety at Work etc. Act 1974 (Section 2)
Employers have an obligation to provide and maintain systems of work and a working environment which are, as far as is reasonably practicable, safe and without risk to health. The duty extends to providing maintenance of safe plant and systems of work, information, training, supervision and adequate support. The general duty to provide a safe and healthy working environment, including risk assessment, will apply to the prevention of stress-related ill health. Employers must assess the risk of mental or stress related ill health arising from work activities and take measures to control that risk. Carrying out a proper risk assessment for mental health issues and stress could enable an employer to avoid prosecution and litigation.
Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)
Employees can obtain damages for stress related claims under the breach of the employer’s duties to assess the risk of stress-related ill-health arising from work activities.
Fatal Accidents Act 1976
This statute has also been used to claim compensation in cases of stress-related suicides by employees. Where an employee suffered from depression (caused by an employer's negligence) and then committed suicide, the Court of Appeal held that even a suicide will not necessarily break the legal chain linking the employer’s acts with the harm to the employee (see Corr v IBC Vehicles Ltd, 2008).
Protection from Harassment Act 1997
Very few workplace mental health issues and stress cases have been brought under the under the Protection from Harassment Act 1997 but there have been some. For example, in Veakins v Kier Islington Ltd (2010), a trainee electrician was persistently told off in public, picked on, had her letters of complaint torn up in front of her etc. She went on sick leave for depression and eventually was dismissed bringing a successful claim under the Act. Whilst unusual, with such harassment claims the employee does not have to demonstrate foreseeability or show that they have suffered from a recognised medical condition whereas in other claims they will have to do so.
Other legislation may also have an impact, such as the Working Time Regulations 1998 (WTR) or the disability discrimination provisions of the Equality Act 2010 (see ‘Disability discrimination’ below). Under the WTR, employers may be exposed to claims if they require employees to work more than 48 hours a week. The obvious purpose of the WTR is to protect the welfare and health of employees. An example comes from Hone v Six Continents Retail Ltd (2006), where the employer was guilty of a serious breach of the regulations restrictions on weekly working time by requiring a house manager to work approximately 90 hours a week. The Court of Appeal held that the WTR should be taken into account in deciding whether psychiatric injury was reasonably foreseeable in a stress claim.
A vast number of industry-specific and other regulations also exist, for example, the Provision and Use of Work Equipment Regulations 1998, the Control of Asbestos Regulations 2006, and the Construction (Design and Management) Regulations 2007.
For public bodies such as local authorities, public duties may also arise. See, for example, Connor v Surrey County Council (2010), where the headteacher was signed off work with clinical depression and brought a claim against the council for negligence. The Court of Appeal found a breach of the council’s public law duties under the School Standards and Frameworks Act 1998, as well the law of negligence (although not all breaches of public law duties will lead to employees claiming in private actions for damages).
Compensation for successful claims
The level of compensation awarded against employers for work-related mental health claims can be high, particularly where the employee never works again. For example, the leading case of Walker v Northumberland County Council resulted in a payment of £175,000 to the employee in an out-of-court settlement.
Many claims for work-related mental health or stress claims are based on the law of negligence. This means that the compensation is approached in a different way to some other employment law claims and is similar to work-related personal injury claims. This means two types of compensation can be claimed.
This is based on the more tangible aspects of the condition. Although general damages can’t make the employee better, they are based on pain and suffering. Medical evidence is needed to support this element of the employee’s claim. The damages incorporate any psychological impact. For example, work related stress may lead to post-traumatic stress disorder, depression or anxiety.
This covers losses and expenses incurred, including direct expenses such as prescriptions, medical costs and travel to appointments. Possible future loss is covered including loss of wages. Special damages aim to return the employee to the financial position as if the illness had not arisen.
If an employee can prove the problems were sufficiently serious that they left them unable to work, the compensation will include the loss of future earnings.
Employees may be able to find solicitors who will pursue mental health at work claims on a ‘no win, no fee’ basis. This means that, assuming the employee wins the claim against the employer, the lawyers take their fees directly from the compensation.
Work-related stress claims can vary widely, with general damages ranging from £5,000 for lower levels of stress, that have a minor effect on life outside work, to much larger sums. For example, in Green v DB Services Ltd (2006) compensation of over £850,000 was awarded, following an employee’s stress and nervous breakdown after being bullied by colleagues. The employer was found to be vicariously liable for the bullying and in breach of its duty of care.
Another well publicised example arose before the collapse of the News of the World newspaper. A former sports reporter was awarded almost £792,736 in 2009 for unfair dismissal and disability discrimination arising from stress. He had been dismissed while on long-term sick leave for stress-related depression following bullying involving the former editor of the newspaper (see also Barber v Somerset County Council, 2004).
Employers’ foreseeability of harm
Different people can cope with different levels of stress. It is not enough for an employee merely to prove they have suffered normal levels of 'stress' as used in an everyday sense. The stress must cause a recognised disorder such as panic attacks, anxiety or depression. There also has to be a serious breach of an employer’s duty to take care of an employee for the claim to succeed.
In Sutherland v Hatton (2002), the Court of Appeal provided useful guidance on the issues of levels of stress, foreseeability and damages for psychiatric injury. The CA said an employer:
- is entitled to assume that an employee can cope with the normal pressures of a job role, unless
- it is in possession of knowledge that suggests that the particular employee is less able to do so and might suffer stress at work or psychiatric illness as a result.
If an employer is in possession of such knowledge, then it has a duty to take reasonable steps or measures to prevent an employee suffering illness.
To make a claim, an employee must establish that the employer knew, or should have known, that it was putting the employee in a situation where there was a foreseeable danger of them suffering from mental health issues and stress.
- does not need to make detailed inquiries of the employee or their medical adviser before being able to foresee these issues
- may still be liable, even if the employee has not been absent from work, if it is clear that the employer has breached the duty of care and the injury is foreseeable.
Since the case of Sutherland v Hatton, other courts have tended to limit the scope of stress at work claims. Each case depends on its own facts and extensive guidance is available from decided cases. Some examples of such cases include Deadman v Bristol City Council (2007) where the Court of Appeal found that, even though Bristol City Council had breached a term of the employee's contract, it was not reasonably foreseeable that this breach would have adverse consequences on the employee's health.
In Hartman v South Essex Mental Health and Community Care NHS Trust (2005), the Court of Appeal emphasised that:
liability for psychiatric injury caused by stress at work is no different in principle from liability for physical injury
- the employer’s breach of duty must give rise to foreseeable injury
- the fact that an employee suffered stress at work, and that the employer was in breach of its duty, does not mean that the employer is liable to the employee if the injury was not foreseeable.
Another good example comes from the cases conjoined to Hartman. In one of those cases, Melville v Home Office (2005), a prison officer was diagnosed with a stress-related illness after performing duties which included cutting down the bodies of prisoners who had committed suicide, including attempting revival. It was held that it was reasonably foreseeable that the officer might suffer psychiatric damage.
The employer offered a general occupational health service which dealt with stress. The Court of Appeal concluded that the mere fact that an employer offers such a service does not mean that the it has foreseen a risk of psychiatric injury, due to stress at work, to any particular individual. In some cases, the availability of such a service may mean that the employer is unlikely to be found in breach even if harm is foreseeable. However, in this case psychiatric injury to the officer was foreseeable.
Employers’ duty to intervene
Employers should be extremely pro-active about managing mental health issues and stress, especially during the pandemic, but should not worry that they will be held liable unfairly. If there is an insufficient link between an employee’s development of a stress-related illness and the stress suffered at work, the illness will not be foreseeable.
For the employer to be liable, the stress-induced injury must be sufficiently foreseeable for any reasonable employer to realise that it should do something about it.
An employee making a claim must always show that the harm was caused by occupational stress, and that it was caused by the employer’s breach of duty. Factors to take into account are abnormally heavy workloads, intellectually and emotionally demanding work, and the level of demand compared with other employees.
Key duties for employers include the overriding duty under section 2(1) of the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work for all employees. The leading case on stress at work remains Hatton v Sutherland (2002) but given the length of time that has elapsed, other cases (such as Bailey v Devon Partnership NHS Trust, 2014) suggest that employer’s duties are evolving, for example, the importance of adequate risk assessments has increased, including for stress at work.
The duty to assess risk of workplace stress could include more detailed personal assessments which provide indications of impending harm arising from stress. Employers that can show they proactively monitored employee’s welfare, especially for those working remotely during the pandemic, will be in a better position to defend claims.
Some other key points, resulting from the many decided cases, include the following:
- There will be no liability unless there was a real risk of mental breakdown which the employer should have foreseen and prevented.
- An employer is entitled to assume that an employee can withstand the normal pressures of the job and, in most cases, take what employees say about their own health at face value.
- An employee must show that it was reasonably foreseeable that overwork would lead to stress and that it would lead to a breakdown in their health. There must be evidence to alert the employer that the employee’s workload would lead to stress and that it was reasonably foreseeable that it would lead to such a breakdown.
- Only if there are indications which would lead a reasonable employer to realise that there was a problem does the duty to take action arise.
If the employer knew, or should have known, that the employee was particularly vulnerable or predisposed to stress-related illness, then the employer may have a positive duty to intervene.
To establish liability in a claim for psychiatric illness caused by stress, there must be clear evidence that the employee’s workload would lead to stress and, importantly, that it was reasonably foreseeable that it would lead to a breakdown in health (see Bonser v RJB Mining, 2003).
In MacLennan v Hartford Europe (2012), a hard-working and popular HR manager developed chronic fatigue syndrome but failed to show a sufficient link between her illness and the work stress.
For further explanations of how the law applies see Hone v Six Continents Retail (2005); Intel Corporation (UK) v Daw (2007); and Dickins v 02 (2008).
COVID-19: Employers owe a duty of confidentiality and data privacy obligations to employees which would normally mean they should not disclose details about employee’s health. However, there is also a duty of care and statutory health and safety responsibilities towards other employees. The government has issued guidance for employers on how they can support the NHS Test and Trace scheme and regulations set out employers’ obligations. It is a legal requirement for individuals to self-isolate when told to by NHS Test and Trace and employers must ensure their employees self-isolate if they have been told to. If there is more than one case of COVID-19 in a workplace, employers should alert the local health protection team.
Employees must tell employers they are required to self-isolate, with the start and end date of the isolation period. Fines apply for breaches of this obligation. Employers in England must not require or encourage someone who should be self-isolating to come to work and may also be fined. Employees can work from home if they are well enough.
Employers should explain the reasoning behind the collection of any data and only keep what is necessary for NHS Test and Trace. Privacy information must be in place before collecting the data. Other sector specific guidance in sectors such as hospitality mean employers must retain a record for 21 days of any customers who attend their establishment. All data must be handled safely and securely and only be used for the purposes of the NHS Test and Trace scheme and not for any marketing purposes.
When giving workplace warnings about contact with any suspected or confirmed case of the virus, employers should try not to disclose names or other medical conditions of those infected.
Whether employers are entitled to see the medical report of an employee who is experiencing mental health difficulties at work depends on many aspects including legislation, data protection, the employment contract, the employee’s consent and the nature of the difficulty.
Employers often include terms in their contracts, or sickness absence policies, requiring employees to consent to a medical examination for a medical report, which may encompass mental health issues. This is usually to enable an employer to gather information on fitness for work because the employee’s fitness to work has deteriorated, either following a short or long-term absence problem or for other reasons. The report would only be requested after discussing the matter with the employee and will either involve the employee’s GP; a specialist doctor; an independent medical practitioner not involved in the employee’s medical care; or the employer’s doctor or occupational health department.
If the employee has clearly given their permission to undergo a medical examination, then this will be helpful but not necessarily enough to protect the employer fully.
There is a clear distinction between the rules covering a medical report supplied by the clinical carer (the GP) and a company doctor. When asking the employee to consent to a request for a medical report, the employer must at the same time supply the employee with a written statement of their legal rights under Access to Medical Reports Act 1988.
Access to Medical Reports Act 1988
Reports from the employee’s own doctor are covered by this Act. The employee must give express consent to the report, and has the right to see any medical report, should they wish to do so, before it is supplied to the employer. The employee must give their prior written consent both to any examination and to the preparation of the report.
The employee also:
- must be given the option of seeing the report before it is sent to the employer
- may request (but not insist on) changes to the report before it is sent to the employer
- can prevent the completed report being disclosed to the employer.
If an employee’s contract contains an express obligation to consent to a medical report, and to it being disclosed to the employer, the employee is technically in breach of their contractual obligations by failing to agree. If an employer does everything it reasonably can to explain to the employee the need for, and purpose of, obtaining a report, and warned the employee that if they do not consent, a decision will have to made about their employment without medical evidence, then if the employer dismisses the employee, and the employee subsequently brings a claim, an employment tribunal will generally accept the organisation had little option but to make decisions in the absence of a report.
Reports supplied by a company doctor after an examination for a particular purpose are unlikely to fall within the Access to Medical Reports Act 1988. However, a right to access may arise under the Access to Health Records Act 1990.
Data protection Act 2018 (DPA)
In accordance with the Data Protection Act 2018, data consisting of information about an employee's physical or mental health or condition, including a medical report, amounts to sensitive personal data under the data protection principles.
Employers need to be extremely careful when processing data relating to an employee’s health even if they have the employee’s consent. Under the DPA, employers must distinguish between consent to a medical examination and the lawful basis for processing personal data in the actual medical reports. Organisations seeking to obtain medical reports need to have consent, but they must also identify another legal basis for processing the data.
So, as well as consent, there must be lawful grounds for processing the information, instead of just relying on the employees’ consent included in contract terms or policies to both obtain the report and process the data.
A proper basis could be because the medical report is necessary for the performance of a contract, to comply with legal obligations, or for the employer’s legitimate interests.
For example, it may be necessary to process a medical report to fulfil contractual obligations including sick pay, or to confirm health insurance eligibility. Alternatively, employment law obligations may include not discriminating against a disabled employee, identifying reasonable adjustments, or not unfairly dismissing and assessing fitness to return to work.
The key aspects are:
- Employees’ consent will not be valid to actually process personal data, even if consent was given in relation to a particular medical issue.
- Employers need consent from the employee to undergo a medical examination and to consent to the release of the report. However, this must be separated from consent to process the data under the DPA and GDPR, because consent for that can no longer be relied on.
- Employers should review and update employment contracts, sickness policies and so on, and ensure the wording makes clear that the employee is consenting not only to undergo the medical examination but also to the compilation of a medical report, but not for processing the data.
- To process the data an additional legal reason must be established.
If employees with mental health issues are treated less favourably, they will have a claim against the employer. The relevant provisions in the Equality Act 2010 define a disability as 'a physical or mental impairment which has a substantial and long-term adverse effect on (the person's) ability to carry out normal day to day activities'.
The mental health issue must satisfy this statutory definition of a disability. Stress could give rise to a mental impairment, as this includes various forms of depression, provided the prognosis is long term and there is appropriate medical evidence. 'Long term' is stated as being for a period of one year or longer. The Act also requires that the employer makes reasonable adjustments to working arrangements, so the disabled employee is not at a disadvantage.
The employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows, or is reasonably expected to know, about the employee’s disability.
Assessing whether an employee is disabled can be problematic, particularly in a case of stress related conditions, as some stress is not a disability. The case Gallop v Newport City Council (2013) concerned a council worker suffering from depression brought on by work-related stress. An independent occupational health report concluded that the depression did not meet the legal definition of disability. Relying on this report the council dismissed him.
His claim for disability discrimination reached the Court of Appeal, which decided that an employer must make a factual judgment as to whether or not the employee is disabled. Although assistance and guidance from an occupational health report is helpful, the employer cannot simply 'rubber stamp' an external opinion. The issue in this case was whether the employer should have actual or constructive knowledge of the facts constituting the employee's disability.
For more information on the definition of disability and normal day to day activities, see our Disability discrimination Q&As.
There is a wide range of online resources and learning materials available to employers to help them manage their staff in ways that prevent and reduce stress.
The CIPD and mental health charity Mind published an updated mental health guide for managers, intended to help improve the support offered to employees. The People Managers’ Guide to Mental Health (pdf) offers specific advice on good practice in recruitment, early intervention, return to work and how to encourage people to talk about their mental health.
Preventing work-related stress
The Health and Safety Executive (HSE) provides a micro site to help businesses prevent mental health issues and work-related stress. The site includes updated advice and guidance, tools, case studies, statistics and Management Standards, which provide employers with a risk assessment approach to identifying, exploring and tackling work related stress. The Standards cover six key areas that are associated with poor health and well-being, lower productivity and increased sickness absence.
Acas has produced Dealing with stress in the workplace, which includes advice on spotting the signs of mental ill health; talking to and supporting team members with mental ill health issues and helping team members return to work. The Royal College of Psychiatrists has a section of its website devoted to Work and mental health, the National Institute for Health and Clinical Excellence (NICE) has published Mental wellbeing at work and the TUC has also published information and guidance on Work and well-being.
Case law examples
The courts have recognised the employer’s duty to be proactive and take the initiative in many cases including the one below. If an employee is suffering from workplace stress, rather than simply adopting a ‘wait and see’ approach, an employer may be expected to do something to assist the employee.
In Easton v B&Q (2015), a successful superstore manager became ill through occupational stress and was absent from work for five months with depression. He returned to a less busy store but was unable to cope, had a relapse and was re-certified as unfit for work due to depression. He alleged this was due to the negligence, or breach of statutory duty, on the part of his employer. He relied on the lack of risk assessments by the employer in relation to stress.
Following the Hatton case, the key issue was whether the injury was reasonably foreseeable by the employer. The court confirmed that:
- employers have no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells them
- an employee who returns to work after a period of sickness is usually implying that they believe themselves to be fit to return to the work they were doing before.
On the facts of this case, the claim failed at the first hurdle of foreseeability, because of the employee’s lengthy managerial career with no psychiatric history. Also, given the high standard of proof required, the relapse was also not foreseeable by the employer.
The manager had not made sufficient efforts to notify the employer of any symptoms, as required in the employer's document about managing stress. A wider risk assessment would, therefore, have had no effect on the outcome.
Another example comes from Barber v Somerset County Council (2004). Here the court held that the employer, a school, did have a duty to check whether the 'maths co-ordinator' was still suffering from stress after the summer holidays. He had been head of the maths department previously then, after a school reorganisation, he gained extra responsibility for public relations at the school. He was regularly working between 61 and 70 hours a week. Before the summer holiday he had been off with stress, and it was held the school did have a duty to check whether he was still suffering after the summer holidays. At the very least, the condition should have been monitored, the workload should have been reduced, and sympathetic inquiries about the employee should have been made when he returned to work after being away with mental health issues and stress.
What steps should employers take to manage stress in employees working remotely?
Many employees enjoy working from home, but increased stress levels are inevitable amongst some homeworkers, especially those unexpectedly having to work from home, for example, during the pandemic. As well as feeling lonely, all homeworkers can have increased anxiety, a lack of perspective and fear of redundancy. These concerns can arise during any form of homeworking but during the pandemic there may be an accompanying fear of contracting the virus. For all staff working remotely, potential warning signs of mental health issues will be harder to identify.
Employers overriding duty to ensure the health, safety and welfare at work for all employees is difficult when the employees can only be observed remotely. Overall, employers should be able to demonstrate proactive steps to monitor welfare for those working remotely during the pandemic. Organisations should be ready to respond to changes in legislation and guidance at short notice and should revisit and review risk assessments to demonstrate compliance with changing government advice.
To minimise the risk of stress claims for remote workers the following things are key:
- Supporting managers and ensuring they have time to prioritise maintaining contact with employees during remote supervision.
- Training managers in regular contact and early recognition of mental health issues so they can identify and address concerns, for example, looking at unexplained changes in attendance and performance.
- Ensuring there is support for managing remote workers’ working hours, including proper lunch and rest breaks especially in busy periods.
- Training on a wide range of issues from mental health awareness, mindfulness, time management, wellbeing, and even eating away from your work area or getting outside for fresh air and exercise.
- Possibly having allocated people who staff can reach out to during lockdown in addition to line managers.
- Training for managers in giving employees special attention where there are any signs of difficulty, including those dealing with loss and grief, or with parenting or other caring responsibilities.
- Live-streamed weekly wellbeing sessions which could involve exercise, mindfulness, meditation etc.
- Some form of non-work based social engagement, perhaps on the intranet or messenger tool. This could include carefully managed spaces where people can talk without focusing on the virus, for example, periodic lunchtime or Friday afternoon catch-ups, virtual socialising, quizzes and so on.
How proactive should employers be in taking steps to avoid stress-related claims?
Employers who do not manage stress and mental health issues risk low morale, high absence levels and high employee turnover. It is in an organisation’s interests to manage stress at work proactively, especially in an uncertain economic environment where employees feel under increased pressure.
The benefits to employers of tackling mental health issues and stress include improved staff commitment and performance, increased productivity, and more effective recruitment and retention. A further benefit is avoiding expensive and time-consuming litigation.
Line managers should help employers identify, prevent and manage mental health issues and stress. They should notice changes in staff behaviour that may indicate stress-related problems and recognise that they may also be themselves the cause of employees' stress (for more information on assessing how effective line mangers are in this area, see ‘What action can an employer take to avoid stress-related claims?’).
All employers have a legal duty to take the initiative if an employee raises a mental health issue, rather than passively reacting and the issue of how proactive employers should be has been the subject of much case law (see Hartman v South Essex Mental Health and Community Care NHS Trust under ‘Employers’ foreseeability of harm’).
As soon as an employer knows an employee is in danger of suffering psychiatric injury from occupational stress, it is under a duty of care to take action to alleviate the stress. They could be liable to pay damages for any failure to do so.
What actions can employers take to avoid stress-related claims?
Organisations must not simply wait for employees to complain. They have a duty to be proactive and keep abreast of current methods for prevention of occupational stress. Employers must keep an eye out for mental health issues and stress at an individual level, or for a generally stressful environment, in the organisation as a whole.
Signs of mental health issues and stress in individuals may include deterioration in relationships with colleagues, irritability, indecisiveness, reduced performance, absenteeism, health problems and an increase in consumption of alcohol.
Managers must prepare how best to have a conversation about mental health, having researched the area first. Their approach might include:
- talking in a private space
- being open minded and prepared for the unexpected
- allowing the employee as much time as they need
- thinking about potential solutions.
It may be necessary to adjourn the meeting before any action is taken.
Signs of mental health issues and stress at an organisational level may include employees being disillusioned, high levels of absenteeism, lateness, disciplinary problems, high employee turnover, reduction in output quality, and falling profits.
Effective management, paying attention to the following points, should assist employers in avoiding stress problems. Line managers must show they take stress seriously and that the organisation has an understanding approach. Larger employers may want to appoint mental health first aiders trained to recognise the signs of mental ill-health and signpost people to help. Providing private spaces, or ‘time to talk’ rooms, in which conversations about mental health can take place in confidence, may also be useful.
Other preventative steps could include:
- risk assessments
- regular employee appraisals
- staff education and training (for example, stress management courses)
- improving managerial support (for example, training managers to handle change more carefully while keeping employees informed, enabling them to cope better with periods of uncertainty)
- providing a helpline, counselling and an occupational health service
- encouraging employees to seek medical help
- ensuring policies and procedures reflect and reiterate these points where relevant
- providing a mentoring system.
The annual CIPD ‘Absence management surveys’ (now rebranded as ‘Health and well-being at work’) have found that popular methods used by organisations to identify and reduce workplace stress include staff surveys, risk assessments, stress audits, flexible working options, and improved work–life balance. More organisations (especially in the private and non-profit sectors) are training line managers to identify and manage stress. The public sector is already more proactive on this.
Does offering a counselling service guarantee a stress-related claim will fail?
An employer that is aware that a worker is having difficulties should investigate and find out what it can do to help. An organisation has a duty to act if it notices indications of stress that would lead any reasonable employer to conclude there was a problem.
One way in which employers can protect themselves is by offering a confidential advice service, providing referral to appropriate counselling or treatment services. The courts have said that employers that offer confidential counselling advice services are unlikely to be in breach of their duty. On the other hand, the courts have also said offering a counselling service does not guarantee an employer will successfully defeat any stress-related claims. A counselling service is a useful element of a complete stress management programme, but it is not a panacea by which an employer can discharge its duty of care.
In the Sutherland v Hatton case (see above) the Court of Appeal suggested providing employees suffering from stress with access to a confidential counselling service is one factor to be taken into account when assessing if an employer has complied with its duty towards its employees and may absolve the employer from liability for negligence. However, the court has also stated that an employer with such a service can still be held liable for psychological injury to an employee resulting from stress. In Intel Corporation (UK) Ltd v Daw (2007) the Court of Appeal upheld a decision to award £134,000 to a stressed employee who had made use of counselling services provided by her employer.
In Dickins v O2 (2009), an employee recovered over £100,000 damages from her employer for psychiatric injury resulting from her stressful employment as a finance manager. She told her manager that she wasn’t coping with the job and he suggested that she contact the O2 counselling service. The case eventually reached the Court of Appeal which stated that provision of a counselling service for staff does not automatically absolve the employer from liability for negligence in causing the stress.
Where an employee has suffered a breakdown, the starting point for assessing damages against a negligent employer is that the employee is entitled to recover the damages in full, even if they might have suffered the breakdown anyway, provided the employer's negligence made a material contribution to the breakdown.
If a counselling service is offered to an employee but they refuse to use it, the employer may be able to argue in appropriate cases that the employee’s compensation should at least be reduced as they contributed to their own dismissal by failing to use the counselling and advice services provided (see the Irish unfair dismissal case Patrick Kinsella v Irish Prison Service (2011).
Can an employee claim both constructive unfair dismissal and negligence compensation for stress?
An employee whose complaints of mental health issues and stress have been ignored by their employer can resign and claim constructive unfair dismissal as well as compensation for negligence and breach of contract. However, such employees can only obtain normal unfair dismissal compensation and not an extra amount for the stress of being dismissed, or the manner of the dismissal.
There is a difference between negligence or breach of contract claims for ongoing stress resulting from the workload, and stress which results from the events leading to the dismissal in an unfair dismissal claim.
The case of Dunnachie v Kingston upon Hull City Council (2004) concerned this issue. An environmental health officer who worked for the local authority for 15 years was bullied by his line manager. The employer failed to recognise this or to address the bullying. The court held that an employee who is unfairly dismissed cannot claim compensation for non-economic loss, including injury to feelings, resulting from the manner of the dismissal under the auspices of an unfair dismissal claim. The compensation awarded in unfair dismissal cases is for economic losses only. This case ended attempts by employees to increase their unfair dismissal claims by between £5,000-£15,000 for extra compensation for non-economic loss.
Recent case law
Baldeh v Churches Housing Association | Employment Appeal Tribunal | 7 May 2019
Issue: Disability discrimination – unfavourable treatment
A housing association employee suffered from depression and was dismissed for poor performance. In a text message sent to a service user, and in her communication with colleagues, the employee had used a tone which the employer felt was inappropriate. The claimant told the employer that her depression sometimes led to changes in her behaviour including saying things that were unguarded.
The EAT found that the tribunal had failed to consider evidence from the claimant showing that she would respond aggressively to people when depressed and that her blunt communications could arise out of her depression.
As the aggressive communication with colleagues appeared to influence her dismissal, this could amount to discrimination because of something arising from a disability. The behaviour arising from disability only had to be a significant influence on the dismissal for the worker to be discriminated against. The case was referred back to a fresh employment tribunal to reconsider.
The case shows that what constitutes a disability is quite widely defined, so stress, anxiety and depression are capable of amounting to a disability under the Equality Act 2010. It is unlawful to discriminate against workers because of their disability, and because of something arising from that disability which may affect communication style and interaction. Similarly, someone suffering from depression may find it difficult to get to work on time and, if dismissed or disciplined, this might be unfavourable treatment for something arising out of a mental health condition.
People with mental health conditions may exhibit secondary behaviours at work which may lead to their employers treating them unfavourably. Employees must not be treated unfavourably because of something arising out of their disability. If an employer does discriminate against a worker in this way, it will need to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim, in order to justify the treatment.
There are likely to be more developments regarding mental health including stress at work because research indicates that work-related mental health issues are increasing.
In October 2017, the Stevenson-Farmer report, ‘Thriving at work: a review of mental health and employers’ was published by the Departments for Work and Pensions and Health and Social Care. This independent review considered the extent of poor mental health at work and the effect on the economy. It found that 300,000 people with long-term mental health problems lose their jobs each year.
Additional research by Deloittes on ‘Mental health and wellbeing in employment’ found poor mental health at work costs the UK between £74 to £99 billion a year, including between £33 billion and £42 billion cost for employers.
The Stevenson-Farmer review’s extensive recommendations for supporting all employees, including those with mental health issues, suggested core principles and standards to help address workplace mental health issues. The 40 recommendations include six ‘mental health core standards’ covering adopting a mental health at work plan, mental health awareness, line management responsibilities and routine monitoring of staff mental health and wellbeing. Large employers and the public sector are expected to demonstrate enhanced standards through external reporting and leadership responsibilities.
Government green paper
The Government responded to the review in 2017 with a green paper and consultation called ‘Work, health and disability: improving lives’. This committed the Government to early action in:
- introducing tailored employment support packages accessed via Jobcentre Plus
- working with health partners, such as NHS England and the National Institute for Health and Care Excellence, to support training and education across the NHS workforce.
- investing funding to help people with long-term health conditions or disabilities into work.
NHS England, with support from the charity Mind, developed a ‘Health and wellbeing framework’ with new, enhanced standards. This was followed by the NHS England ‘Long term plan’ in January 2019, setting out priorities for how the Government and other organisations will improve services in priority areas over the next 10 years, including those dealing with mental health and stress.
In its 2017 manifesto, the Conservative government also said it would:
- improve the legal definition of disability, to ensure that more people with mental health problems are covered by the Equality Act 2010
- introduce a consultation on changes to Statutory Sick Pay (SSP) so that it works flexibly and allows employees to make phased returns to work.
The first development has not been addressed, but an SSP consultation was initiated in July 2019.
Statutory sick pay
Employees currently must work at least 14 hours on a minimum wage to qualify for SSP. The Departments for Work and Pensions and Health and Social Care are consulting on the thresholds for SSP eligibility, including whether to extend eligibility below this 14-hour threshold. The consultation will also look at:
- flexible phased returns to work
- the possibility of a rebate for small businesses that help employees return to work
- changing the legal framework to encourage employers to intervene early during a period of sickness absence
- reforming SSP so that it is better enforced and covers the lowest paid employees
- ways of reducing costs for small employers and self-employed people.
Until any new legislation is introduced, the significant developments regarding mental health generally, including stress at work, will continue by way of case law. There has been a tendency for the courts to try and limit the scope of such claims.
For information on what Brexit may mean for employment law, visit our Brexit hub.
Outlines employers’ health and safety obligations in the UK
Reports on the final phase of research, funded by the HSE, CIPD and Investors in People, into management competencies for minimising workplace stress